Sunday, August 02, 2009

Paula Bennett: who pays for the lawyer?

Cabinet Manual. The one her Cabinet colleagues are letting her urinate all over, has this to say on her performance regards her "implied consent" defence for publication of confidential personal files:

Litigation involving Ministers

Judicial review4.18 "Judicial review" is the review by a judge of the High Court of any exercise of, or non-exercise of, a decision-making power in order to determine whether or not the decision was lawful or valid. Most formal decisions taken by the executive arm of government (including Ministers), and the process by which they are reached, are able to be reviewed by a court. Ordinarily, a power that is the subject of review proceedings will be one that has been conferred on the decision maker by statute.

4.19 On occasion, the courts will review the exercise of other public powers, such as those arising under the royal prerogative. The courts are most unlikely to intervene, however, where the decision in question is part of the forming of policy by the government of the day.

4.20 The basic questions for judicial review are:a. has the decision maker acted within the scope of the power or discretion conferred?b. has the decision maker acted reasonably and fairly?The courts are primarily concerned with the process of decision making rather than the outcome or merits of the decision.

4.21 The most likely grounds for review of a ministerial decision are that, in making the decision in question, the Minister:a. acted outside the scope of the power or discretion;b. misinterpreted the applicable law;c. did not make up his or her own mind on the matter that he or she has been called on by law to determine (acted "under dictation");d. took into account irrelevant considerations;e. failed to take account of relevant considerations; orf. did not act "fairly" in that he or she failed to hear from or consult with persons or groups who would be affected by, or otherwise had an interest in, the particular decision.

4.22 A Minister will be dependent on officials for many of the above matters, and often the relevant officials will be the key witnesses in judicial review proceedings. Where the Minister is required to make the final decision, however, the court will regard the Minister as the person who is ultimately responsible for ensuring that the decision is made reasonably, fairly, and according to law.

4.23 Referring any matter to Cabinet or a Cabinet committee where the Minister is acting under statutory authority must be carefully handled so that it is clear that the Minister is not asking Cabinet to make the decision. Paragraphs 5.31 - 5.35 contain detailed guidance about statutory decision making in the collective context.

4.24 In almost all cases, litigants are given court-authorised access to the departmental papers on which decisions are taken (through the process of discovery). Officials should therefore prepare all submissions to Cabinet and Cabinet committees and other policy advice assuming that the papers could be made public.[...]Indemnity of Minister as a defendant

Proceedings brought against Ministers4.34 The guidance in paragraphs 4.35 - 4.53 sets out the process for indemnifying Ministers for legal costs incurred in the course of legal proceedings brought against them in their capacity as Ministers. References to Ministers in this guidance also apply to former Ministers, including those of previous governments.

Proceedings concerning the exercise of ministerial powers4.35 Ministers may be named as defendants in court proceedings, almost always in relation to the exercise of their ministerial powers. Most proceedings will be by way of judicial review, which generally involves a legal challenge to the way in which a particular (usually statutory) power has been exercised. (See paragraphs 4.18 - 4.24.)

4.36 Ministers would not be at risk of judicial review proceedings at all if it were not for their official position. It is a convention of government, therefore, that Ministers should be indemnified by the Crown for any actions taken against them for things done or decisions made in the course of their ministerial duties. The indemnity will cover the cost of defending the proceedings, and any costs or damages awarded against the Minister (except in exceptional cases - see paragraph 4.51).

Proceedings against a Minister personally4.37 On occasion, Ministers may be sued for acts done while a Minister, but which have a more "personal" aspect. For example, a Minister may be sued in defamation arising from the contents of a particular speech or other public statement. Alternatively, proceedings may be instituted alleging that a Minister has acted dishonestly or in bad faith. The extent to which a Minister will be personally liable will depend on the law relating to the particular matter.

4.38 By their very nature, cases against a Minister personally raise issues about whether the Minister has acted so far beyond the scope of his or her authority that the Minister should not be indemnified by the Crown in relation to the proceedings. No absolute legal right to indemnity by the Crown exists just because a Minister was acting as a Minister in doing, or refraining from doing, the act that is the subject of the claim.

4.39 Where a Minister is sued or threatened with legal action personally and it is uncertain whether he or she should be indemnified, the normal arrangement is to seek Cabinet's agreement in advance to meet the expenses of legal representation. The question of indemnity on costs and damages will be held over until judgment has been given. (See paragraphs 4.49 - 4.52.)

4.40 If an indemnity is given to a Minister, the government may be called on to answer for it in the House.[...]Protection and classification of official information8.2 The government holds a large quantity of information of all kinds. The law governing the collection, storage, release, and use of official information is mainly set out in the Public Records Act 2005, the Official Information Act 1982, and the Privacy Act 1993. All government information should be treated with care and protected from unauthorised release.[...]Privacy Act 1993Purpose of the Act8.52 The purpose of the Privacy Act 1993 is to promote and protect individual privacy - in particular to establish principles on:a. collection, use, and disclosure of information relating to individuals;b. access by individuals to information held about them.The Act covers both the public and private sectors.

Compliance8.53 Ministers and departments must be careful to ensure that they comply with the law when they collect, use, and disclose information concerning individuals. A breach of the Act may result in legal action, including, in some cases, an award of damages.[...]8.55 The Privacy Act 1993 covers "personal information", which is defined in section 2 of the Act as "information about an identifiable individual."[...]Ministerial access to and use of personal information8.57 Ministers should exercise great care in dealing with personal information, and seek advice from the Office of the Privacy Commissioner in cases of doubt. In particular, Ministers and departments must handle personal information in accordance with the information privacy principles, as set out in section 6 of the Privacy Act 1993.

8.58 If a Minister requests personal information about an individual from his or her own department in order to deal with a portfolio issue, the department should in general provide that information to the Minister unless there is a legal obligation not to do so. (The statutory provisions protecting information collected by the Inland Revenue Department are an example of such an obligation.) The information privacy principles, as set out in section 6 of the Privacy Act 1993, should be carefully considered in relation to any such request.[...]The disclosure of information about an individual by Ministers is governed by both the Official Information Act 1982 and the Privacy Act 1993.[...]A release by a Minister of information about an individual, in the absence of a request for it, is governed by Principle 11 of the Privacy Act 1993. That principle allows only limited situations in which it would be appropriate to disclose personal information; for example:

if the disclosure is directly related to the purposes for which the information was obtained;

if disclosure is authorised by the individual concerned; or

if disclosure is necessary to prevent a serious threat to public health or the life of another individual.

Although it's quite clear to us, and if the judiciary get hold of it most likely to them too, the Cabinet ought to come to their senses and issue a "clarification." Something along the lines of:

A Minister cannot release information about an individual unless the Minister first obtains the explicit consent of the individual concerned to release that information.

The problem is for Bennett that if you look through these rules she appears to have broken them, and has quite probably opened herself up for legal action. And if this eventuated, or even "threatened" (as the manual says at 4.39), then it becomes a headache for the whole Cabinet - one they must make a call on. Either they back her or they don't. If they get her to sign some sort of a waiver beforehand saying that she will take full personal financial responsibility for any potential court case coming out of this it may be a way of heading it off, but even that would indicate they are backing away from her position. In any case they must reaffirm the status quo ante that at all personal confidential information is safe, because at the moment with Bennett, it is not.

How messy could this get?

She did what she did in bad faith - that's the crux and is why she will lose the case. She has admitted on TV and in the House that she was "playing political football" and the only reasonable understanding of why she did what she did in releasing the personal information the way she did was because she knew she would never get any sort of consent for it from the individuals concerned.

The effects of her action may also meet the grounds for seeking damages: it held the individuals up for public scorn and derision, it was done deliberately, and yes, it was done maliciously, or using her terminology to teach them "a lesson." It was designed to humiliate the individuals concerned. That's malice. It has had an impact on the victims - a heavily negative one - as it was designed to. And because the reason and motivation for the disclosure was wrong she has also, therefore, misused her staff in both gaining the information and in getting advice on it (she changed her original stance to admit that she sought and received advice, which now makes things worse not better for her). She's gone on the public record to confirm all the central facts that together ought to be enough to get her red carded. If the Nats had any operational radar they would opt for a self-administered yellow card before that point, but they aren't thinking straight. Do they need to have their minds focussed?

In addition to this it was also discriminatory in nature because this rule supposedly "implicitly"(?) applies only to one class of personal information - that of beneficiaries. The courts would love to get their teeth into this. Anyone who listened to the Chief Justice tear strips off the the Solicitor-General in the Zaoui case a few years back will appreciate how an issue of abuse of power might go down on appeal. The Nats could be only a pro bono QC away from getting a direct kick to their collective Cabinet balls.

Is Dame Paula Bennett really that much of an asset to be protected? She's broken every rule in the book, patronisingly bragged about being a Cabinet Minister as if that were a justification in itself for her actions - and now she risks tainting the whole Cabinet if this thing goes to court. She's putting the PM and her more sensible senior colleagues on the spot. She's putting her associate, Tariana Turia - and by extension also the Maori Party deal - under huge pressure. That makes her a liability.

Wake-up Prime Minister, peel yourself of your desk, straighten your tie, hide the whiskey bottle, pop a peppermint, and get some clear-eyes, because you have some explaining to do, otherwise, the shits gonna hit the fan, and after all, the buck stops with you Prime Minister - you are supposed to be steering this boat, so take a cold-shower, enjoy a hot-feed, open-up and confide in your wife, and get your a-in-to-g before you end up looking completely ridiculous and utterly redundant. Less Public-Relations Propaganda and more substantial action is required - the public are smarter than you dare to believe, and while you are cunning, you are not as clever as you seemingly believe yourself to be - try being direct and non-evasive, while adding a healthy sprinkle of modesty for refinement, and then for goodness sake, start leading, your quickly becoming an embarrassment to the reasonable and moderate sensibilities of fairness and order held so dear, by so many in this country. Show-time Mr Prime Minister!